COVER STORY The lessons for euthanasia are there for the learning

Euthanasia and capital punishment both involve state-sanctioned killing: why does the thinking on one seem to be heading in the opposite direction to the thinking on the other?

Euthanasia and capital punishment are not often mentioned in the same sentence. Yet both involve state endorsement of the deliberate, premeditated and intentional termination of a human life. Capital punishments were carried out in Australia between 1788 and 1967 and abolished between 1922 and 1985. Australians are increasingly opposed to the practice of capital punishment overseas where it remains a method of punishment in most countries.

Unlike capital punishment, euthanasia is prohibited in most countries. Despite regular attempts to introduce it, euthanasia has always been unlawful in Australia, apart from a period of less than nine months, in the Northern Territory. Of course, that may soon change, particularly in Victoria, where Premier Daniel Andrews supports the introduction of the practice.

So, what might we learn from our experience of capital punishment that is relevant to current calls for legalising euthanasia?

Let’s consider four things.

1. The irrevocable nature of death

Because death is irrevocable the risk that any innocent person might be executed (the irrevocable argument) was one of the key arguments for the abolition of the death penalty in Australia. It was and is a very powerful argument. It was powerful even though there was no definitive evidence of any innocent person being executed in Australia. It was powerful despite Australian accused persons being tried by an independent judiciary with a jury and an advocate speaking on their behalf and having rights of appeal in the event of error. The fact that there was a risk, albeit very small, that an innocent person could die was enough.

Where euthanasia is legislated, the state normally set limits on when it will be permissible. States want to ensure that only those who fit the relevant criteria – such as the incurably ill – will have their lives brought to an end in this way. The irrevocable argument suggests that euthanasia should remain prohibited if even a very small risk exists that a person might be euthanised in error or euthanised outside the set criteria.

This could occur where an error is made in applying the criteria, where there has been a misdiagnosis, inadequate information of treatment or palliative-care options, or where the person seeking euthanasia is suffering from untreated pain, lacks the mental capacity to consent, suffers from an untreated illness, particularly a mental illness such as depression, or when overborne or pressured by another. It could also occur if patients were euthanised without their consent. No euthanasia safeguards ever involve the rigour of the processes that were applied in capital cases in Australia. Yet this rigour was not enough to defeat the irrevocable argument against capital punishment.

There were no definitive instances of innocent prisoners being executed in Australia, but the euthanasia story is not so good. Two out of the seven patients who sought euthanasia in the Northern Territory were given inadequate information of their true medical condition and of their treatment options. Unlike the criminal justice system, with its system of judicial appeals, under the NT act, if a doctor found that the patient did not meet the criteria for euthanasia, the patient could approach an unlimited number of other doctors until one could be found who would give the required opinion. This situation arose during the brief operation of the NT act.

In one case when there was no consensus among oncologists that the patient’s condition satisfied the requirements, after an appeal on national television, an orthopaedic surgeon, who had no expertise in her condition, provided the required certification, and the patient was euthanised. In another case a patient was jaundiced and suffering from a bowel obstruction but was not advised of the palliative care and medical treatment available.

Psychiatric illnesses and depression raise issues about a patient’s mental capacity to provide informed consent. There is a close association between depression and a wish to die. Treatment often sees that wish disappear.

Of the seven patients who were euthanised under the NT act, four showed symptoms of depression. Even where euthanasia legislation mandates a psy­chiatric assessment, depressed patients remain at risk. Part of the problem is that depressed patients who have determined to seek euthanasia and see any mandated psychiatric assessment as an impediment to obtaining that outcome are unlikely to disclose their full histories to a psychiatrist.

During the operation of the NT act one candidate, who was alienated from one child and had endured the death of another, withheld that information from the psychiatrist charged with her assessment. She was subsequently euthanised.

People in pain want that pain to stop. Death can seem desirable when in pain. Many euthanasia candidates change their mind when provided with pain relief and palliative care. Adequate training of physicians in pain management and access to such services remain issues in Australia. A failure to control appropriately a patient’s pain or to provide access to palliative care can result in requests for euthanasia that cannot properly be termed voluntary.

Just as the best legal system cannot completely eliminate the risk of an innocent person being executed, no euthanasia regime can completely eliminate risks like misdiagnosis – it is too late to discover an error on autopsy.

2. Risks to minority and vulnerable groups

One of the other arguments for the abolition of capital punishment was that it was disproportionately enforced against vulnerable groups such as those suffering from mental illness, the less educated, racial minorities and members of lower socio-economic groups. Euthanasia also appears similarly to impact disproportionately on the vulnerable, those suffering from mental illness, the elderly, the poor and Indigenous Australians.

3. Pain and suffering

The pain and suffering endured in capital punishment was another powerful argument used in Australia to support its abolition. While all executions in Australia were by hanging, there is much evidence of the pain and suffering endured in executions by lethal injection in the United States.

While proponents of euthanasia seem to assume a guarantee of a “good death”, of painlessly drifting off into a never-ending sleep, they fail to explain how euthanasia could be free from the complications that bedevil capital punishment by lethal injection.

We hear little about horrible euthanasia deaths but, unlike capital punishment, euthanasia does not normally occur in the presence of journalists and opponents of the process. Doctors and family members, who are involved in the decision-making process of the person who has accessed euthanasia, are likely to support that decision. They are not likely to come forward to identify problems with the procedures.

However, such evidence as there is suggests that complications are common. They include difficulties in finding a vein suitable for the lethal injection, problems with the intravenous catheter, difficulties administering an oral drug, spasms, sudden, involuntary jerking of muscles, skin turning blue, nausea, vomiting, hiccups, perspiration, extreme gasping, patients waking up from a drug-induced coma and death taking longer (up to seven days) than expected. Forty years of capital punishment by lethal injection and the international experience of euthanasia by this means suggest that complications may be inevitable.

4. Who will do it?

Hangmen were hired specifically for that role. They needed knowledge of medicine, anatomy and other skills. They had to assess the strength of neck muscles, gauge weight, determine the length and strength of rope and tie the approved knot. To do the job, hangmen had to visit the condemned regularly. But their hangman’s role was clear – the condemned never considered their executioner to be a trusted medical adviser. Hangmen played no part in the state’s decision on whether or not a prisoner should be executed.

Execution by lethal injection involves different technical skills from hanging. Where health professionals are involved in capital punishment their role can be confusing because they are normally in a position of trust and a fiduciary relationship with their patients and they normally treat, cure and save rather than end lives. For this reason many argue that health professionals should not be involved in capital punishment.

Even more confusion of roles can arise in relation to euthanasia. Again, medical practitioners performing this role end rather than save life.Many are euthanasia advocates and may have an actual or perceived conflict of interest. This is particularly so given that, unlike a hangman, a doctor has a fiduciary relationship of trust with their patient.

Such a doctor may have been involved in assisting the patient to choose euthanasia and facilitated that objective. For example, Dr Nitschke paid for the fees of one of the psychiatrists who signed off on the availability of euthanasia for one of his patients during the brief operation of the NT act.

Conclusion

We really can’t forget our experiences of capital punishment when thinking about euthanasia. Both involve state-sanctioned termination of human life. A death by euthanasia is just as irrevocable as a death by hanging. Just as it would be a heinous tragedy to hang an innocent person, so it would be to euthanise a person who had been misdiagnosed, given inappropriate pain relief or who is depressed or mentally ill.

We can really learn from the evidence of deaths that are far from good in capital punishment by lethal injection in the U.S. and from experience of euthanasia overseas. If euthanasia is supposed to bring about a good death, any and all risks of that not being achieved need to be fully understood and explained. We should also recognise that there are ethical risks whenever health professionals get involved in administering lethal injections.

These are some from among the many lessons we have learned about state-sanctioned taking of life that we forget at our peril.

Professor Michael Quinlan is Dean of the School of Law, Sydney, at the University of Notre Dame Australia. This article is an amended and abridged version of the paper, “ ‘Such is life’: Euthanasia and capital punishment in Australia: consistency or contradiction?”, which was recently published in Solidarity: The Journal of Catholic Social Thought and Secular Ethics.